SCOTUS to take the cake

[blastula]

They are free to disapprove all you want, but they still need to treat customers fairly and provide the services they do for anyone else.

 

[RavenSky]

They are free to disapprove all you want, but they still need to treat customers fairly and provide the services they do for anyone else.

With regard to the wedding cake in the Philips case, I agree 100%.

I think it gets trickier when the bakers are asked to include words/images on the cakes if those words images are outside the norm. But then, what is over the line? Asking a baker to decorate a cake with clearly obnoxious words/images (as the idiot O'Keefe wannabe's did) is too obvious. Should a baker be required to create pornographic images/words on their cakes?

But what about the Muslim baker who refused to write "Merry Christmas" on a cake? The t-shirt printer who refused to print a gay-pride logo on a t-shirt? The grocery store bakery that refused to write a child's name on the birthday cake?

And does it matter whether the customers are members of a "protected class"? In other words, does the gay-pride group have a case but Adolf's parents don't?

Should the customer's view ALWAYS trump the merchant's?

 

[ruby sparks]

Should the customer's view ALWAYS trump the merchant's?

Good luck with that.

I haven't seen much of the discussion about the Silva case where the baker declined to write bible passages. Can I take it that some here would say that the complaint in that case should have been upheld?

 

[blastula]

As I said, as long as they already provide the service for everyone. If they don't already do Christmas products, then they shouldn't have to.

As has been noted multiple times, and which certain judges will probably ignore, the customers in this case never even asked for a specific message or design before they were refused.

 

[ruby sparks]

As I said, as long as they already provide the service for everyone. If they don't already do Christmas products, then they shouldn't have to.

As has been noted multiple times, and which certain judges will probably ignore, the customers in this case never even asked for a specific message or design before they were refused.

So are you saying that if Philips had been asked to include in the design something specifically related to gay marriage, you would agree the complaint shouldn't be upheld?

 

[laughing dog]

http://www.scotusblog.com/wp-content/uploads/2017/09/16-111_tsac_christian_legal_socy.pdf

The amici brief at the link above articulates the discrimination argument under the Free Exercise of Religion Clause that the Court could adopt. It’s a cleaner argument.



Sent from my iPhone using Tapatalk

From that document:

"Viewed in purely secular terms, we have intangible
emotional harms on both sides of the balance.
The emotional harm to same-sex couples cannot compellingly
outweigh the emotional harm to believers.
Reciprocal moral disapproval is inherent in a pluralistic
society; the desire of same-sex couples never to
encounter such disapproval is not a sufficient reason
to deprive others of religious liberty."

Wow, that is an endorsement of religious-driven bigotry. if the article I linked is accurate, that should backfire.

 

[Loren Pechtel]

I think it gets trickier when the bakers are asked to include words/images on the cakes if those words images are outside the norm. But then, what is over the line? Asking a baker to decorate a cake with clearly obnoxious words/images (as the idiot O'Keefe wannabe's did) is too obvious. Should a baker be required to create pornographic images/words on their cakes?

My take on it--acceptable if the policy is neutral. "We reserve the right to not put controversial or inflammatory messages on cakes."

But what about the Muslim baker who refused to write "Merry Christmas" on a cake? The t-shirt printer who refused to print a gay-pride logo on a t-shirt? The grocery store bakery that refused to write a child's name on the birthday cake?

"Merry Christmas" is routine enough I don't think it should be acceptable to say no.

Gay pride logo--no. This is a purely mechanical task, not a creative one. (Now, if they have to build the layout for the logo that's another matter.)

I don't know the background of the birthday cake.

And does it matter whether the customers are members of a "protected class"? In other words, does the gay-pride group have a case but Adolf's parents don't?

Should the customer's view ALWAYS trump the merchant's?

I don't think protected class matters--I don't like the concept of protected classes. Anything that's set by biology should be considered a protected class. No protection for things that are set by choice, though--for example, being a neo-Nazi.

 

[ruby sparks]

I don't think protected class matters--I don't like the concept of protected classes. Anything that's set by biology should be considered a protected class. No protection for things that are set by choice, though--for example, being a neo-Nazi.

I am still curious about this idea of 'protected classes' in the USA. It seems....odd. Arguably unequal. Is it a form of positive discrimination?

I'm not dead set against positive discrimination. I just think it needs to be very carefully justified or argued for in each instance. It can run the risk of being counter-productive, imo.

 

[Jason Harvestdancer]

Here's another "damn cake" that is in question. These guys are explicitly in the business of making artistic statements, unlike bakers where it could be argued either way.

Surge in requests for Nazi, KKK ink prompts Maine tattoo shop to say 'stop asking'

Of course this is happening in Maine, the northernmost New England State, but I'm sure people can find a way to say this Yankee story is the fault of the South.

It’s always been the policy of Rockland-based Siren Song Tattoo that the artists who work there won’t tattoo messages of hate, including Nazi and white supremacist imagery.

But it’s only recently that the business’s owners, Alison and Justin Wheeler, felt they needed to publicly state that they’re not in the business of making hateful sentiments permanent with body ink.

“So we wouldn’t normally do this but there have been an alarming amount of people wanting Nazi/KKK tattoos this year! So we are declaring now that we do not create images or recreate images that pertain to those parties and like parties,” a Dec. 23 post on the shop’s Facebook page read. “Get over it and stop asking us, we ain’t about that …”

The post came in response to a request Siren Song received that morning, Alison Wheeler said. The text, which Siren Song included a screenshot in their Facebook post, read, “Hey i want a nazi logo on my chest in a couple months. Would you do that for me?”

That inquiry was one of four or five requests for Nazi, Ku Klux Klan or white supremacy-related tattoos that the small shop received during the past year. That’s more than she has received in her entire career, Alison Wheeler said.

Nationally, the last year has seen an increase in people publicly expressing white nationalist and white supremacist beliefs. Perhaps the most notable instance was the Aug. 12 Unite the Right rally that left one counterpro te ster dead as white nationalists marched through the streets of Charlottesville, Virginia.

The Wheelers, a husband and wife duo, had a tattoo shop in Richmond, Virginia, before opening their Rockland shop about eight years ago. When they were in the South, Alison Wheeler said they would sometimes receive requests for KKK or Nazi tattoos, with people trying to use codes like “pinwheel tattoos” for images of swastikas. But even then, it was rare.

In the eight years that she and her husband have been in Maine, Alison Wheeler said she can’t remember receiving any requests for tattoos of this nature — until this year.

“I don’t know if there’s one exact thing [contributing to the rise],” she said. “I don’t know — maybe they’re getting braver.”

While Siren Song Tattoo might not be able to control or change what anyone thinks, the Wheelers want to be clear they’re not a place that tolerates hate.

“We have a lot of different clients from a lot of different groups of people and we protect all of them,” Alison Wheeler said. “We’re not going to help anyone be hateful.”

Because there is no overarching code of ethics to set uniform content standards for tattoo artists, the refusal to ink certain images can vary from shop to shop or even artist to artist, Alison Wheeler said.

Just down Route 1 from Siren Song Tattoo, Atlantic Tattoo Studios owner Seth Mathiau said his shop will not tattoo racist or hateful imagery, either. His shop hasn’t seen an increase this year in requests for these tattoos but has in the past fielded requests for Confederate flags, which he will not tattoo.

While some tattoo shops might not care and just do a tattoo for the money, Mathiau said the “majority of shops would probably say no.”

In recent decades, the culture around tattoos has changed. Justin Wheeler said that in the past racist imagery among tattoos might have been more prevalent, but that is no longer the case.

“The people who are tattooing, the artists,” are a big reason that has changed, he said.

Since they made their Facebook post, the Wheelers have been shocked at the outpouring of support they’ve gotten ― mainly because they feel refusing to tattoo hateful and racist imagery is common sense.

The post now has a long string of positive comments from patrons and others, applauding them for taking a public stance against hate.

“Y’all are epic and awesome and have permanently secured my business and constant applause. Good for you,” one commenter wrote.

But to the folks at Siren Song Tattoo, they’re not trying to “take a stand.” They’re just practicing basic humanity.

 

[ruby sparks]

Here's another "damn cake" that is in question. These guys are explicitly in the business of making artistic statements, unlike bakers where it could be argued either way.

Surge in requests for Nazi, KKK ink prompts Maine tattoo shop to say 'stop asking'

Interesting. I guess that we could try to apply that to the OP case by saying that if Philips (or Silva, or any baker or similar purveyor of relevantly equivalent products) openly came out and said beforehand that they don't do certain services on this or that grounds, it would at least go towards ameliorating their position in a dispute about providing a certain service or product in any subsequent case.

Whether a business needs to do this, is legally obliged to do it, or whether it is just an option, might be another question.

 

[Jason Harvestdancer]

Here's another "damn cake" that is in question. These guys are explicitly in the business of making artistic statements, unlike bakers where it could be argued either way.

Surge in requests for Nazi, KKK ink prompts Maine tattoo shop to say 'stop asking'

Interesting. I guess that we could try to apply that to the OP case by saying that if Philips (or Silva, or any baker or similar purveyor of relevantly equivalent products) openly came out and said beforehand that they don't do certain services on this or that grounds, it would at least go towards ameliorating their position in a dispute about providing a certain service or product in any subsequent case.

Whether a business needs to do this, is legally obliged to do it, or whether it is just an option, might be another question.

Or, if they say ahead of time that they don't offer certain services on this or that grounds (such as the grounds on which they actually refused) they would make themselves targets. People who oppose them politically might seek them out in order to obtain the refusal necessary to lodge a complaint.

These tattoo artists are fortunate in that the people they discriminate against are politically unpopular.

 

[Loren Pechtel]

I don't think protected class matters--I don't like the concept of protected classes. Anything that's set by biology should be considered a protected class. No protection for things that are set by choice, though--for example, being a neo-Nazi.

I am still curious about this idea of 'protected classes' in the USA. It seems....odd. Arguably unequal. Is it a form of positive discrimination?

I'm not dead set against positive discrimination. I just think it needs to be very carefully justified or argued for in each instance. It can run the risk of being counter-productive, imo.

You can't discriminate against someone for being a member of a protected class. The problem is with the notion that there should be a list at all, it should simply be that you can't be discriminated against for things which are beyond your control.

 

[RavenSky]

I don't think protected class matters--I don't like the concept of protected classes. Anything that's set by biology should be considered a protected class. No protection for things that are set by choice, though--for example, being a neo-Nazi.

I am still curious about this idea of 'protected classes' in the USA. It seems....odd. Arguably unequal. Is it a form of positive discrimination?

I'm not dead set against positive discrimination. I just think it needs to be very carefully justified or argued for in each instance. It can run the risk of being counter-productive, imo.

It's not "positive discrimination" in the sense of giving a leg up in any way. It is a specified prohibition against discrimination against people for any of the following reasons:

Federal protected classes include: Race, Color, Religion or creed, National origin or ancestry, Sex, Age, Physical or mental disability, Veteran status, Genetic information, Citizenship

As I mentioned earlier, most states also include: Ancestry, Marital status, Sexual orientation, Gender identity and gender expression

This means, to use our cake examples, a baker cannot refuse to bake a cake for someone because the customer is a woman or gay or Jewish (or anyone else thanks to separate public accomodation laws).

On the other hand, no baker is obligated to produce a product for a woman or a gay couple or a Jewish rabbi that they don't ordinarily produce for everyone.

For example, baker Philips does not make Halloween-themed cakes for anyone. As such, he would not be discriminating against the Wiccan woman who comes in asking for a Halloween-themed cake for her Samhain sabbat even though she is a member of a "protected class" under gender and religion.

If, on the other hand, baker Philips does ordinarily make Halloween-themed cakes for customers, but refuses to do so for the Wiccan woman because he thinks her religion is forbidden by his bible - he would be discriminating against as protected class (religion) and in violation of federal and state law.

That is a really clear cut example, but it can get very tricky (as these threads show)

 

[Jason Harvestdancer]

Then again, the tattoo artist very likely includes the occasional political message.

 

[Loren Pechtel]

It's not "positive discrimination" in the sense of giving a leg up in any way. It is a specified prohibition against discrimination against people for any of the following reasons:

How can you say this with a straight face given what's been posted on here about college admissions?

 

[RavenSky]

It's not "positive discrimination" in the sense of giving a leg up in any way. It is a specified prohibition against discrimination against people for any of the following reasons:

How can you say this with a straight face given what's been posted on here about college admissions?

What thread are you posting in? We are discussing non-discrimination in public accomodation. If you want to talk about "college admissions" again, go start a different thread.

What I said in this thread and the topic of this thread is 100% accurate.

 

[RavenSky]

Then again, the tattoo artist very likely includes the occasional political message.

The tattoo artist is an interesting consideration, and the appellate courts are split in their decisions.

On the one hand:

The courts upholding these restrictive zoning ordinances distinguish the act of tattooing from the tattoo itself; while the tattoo itself is protected speech, the process of tattooing is not.[12] In Yurkew v. Sinclair, for example, the court found a tattoo artist’s “interest in engaging in conduct involving tattooing does not rise to the level of displaying the actual image conveyed by the tattoo, as the tattoo itself is clearly more communicative, and would be regarded as such by the average observer, than the process of engrafting the tattoo on the recipient.”[13] Therefore, these courts have found that “the act of tattooing is one step removed from actual expressive conduct” because it is the client’s message that is being communicated, not the tattoo artist’s message.[14] Thus, the tattoo is considered pure speech and protected under the First Amendment, while the art of tattooing is not and subject to a city’s zoning bylaws.

(bolding mine)

This argument could (in my opinion) also apply to baker Silva, Hands On Printing and the grocery store bakery cases, too.

On the other hand:

... the United States Courts of Appeals for the Ninth and Eleventh Circuits do not distinguish the act of tattooing from the tattoo itself, holding instead that the process of tattooing is artistic expression protected under the First Amendment.[15] In Anderson v. City of Hermosa Beach, the Ninth Circuit held that tattooing was protected speech and that Hermosa Beach could not ban tattoo parlors from operating within the city.[16] Similarly, in Buehrle v. City of Key West, the Eleventh Circuit held that “the act of tattooing is sheltered by the First Amendment, in large part because we find tattooing to be virtually indistinguishable from other protected forms of artistic expression.”[17] The primary difference between a tattoo and a painting is that a tattoo is drawn on the skin, whereas a painting is drawn on a canvas. A form of speech should not lose its First Amendment protection simply because of the surface on which it appears.[18] Deeming tattooing as an artistic expression, these courts do not treat an artist whose chosen medium is the skin differently than an artist whose chosen medium is canvas or clay.

In her decision in Buehrle, Justice Pryor further emphasized the defect of separating tattooing from the tattoo itself by recognizing that the Supreme Court has frequently held that protected artistic expression encompasses different actions by a number of parties on the same piece of work. For example, in Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., the Court found that the First Amendment protected both the act of writing and the act of publishing.[19] Thus, as with writing, the act of tattooing is inextricably linked to the tattoo, and deserves First Amendment protection. Simon demonstrates that the Supreme Court does not distinguish between the process of creating art and the product of those artistic processes.[20]

(bolding mine)

https://uclawreview.org/2016/05/18/...e-protected-speech-under-the-first-amendment/

This is the argument all three of those businesses (and baker Phillips) are making.

The above passages are by law students University of Cincinnati, and their focus was on zoning laws - but the implications are interesting for the case you posted, and the rest of the cases we have been discussing.

 

[Loren Pechtel]

It's not "positive discrimination" in the sense of giving a leg up in any way. It is a specified prohibition against discrimination against people for any of the following reasons:

How can you say this with a straight face given what's been posted on here about college admissions?

What thread are you posting in? We are discussing non-discrimination in public accomodation. If you want to talk about "college admissions" again, go start a different thread.

What I said in this thread and the topic of this thread is 100% accurate.

The point is you say there's no harm done. Just because it might not be so obvious in some cases doesn't mean there isn't a problem.

 

[fast]

The distinction that seems so transparently obvious is between people discrimination and product discrimination. If I choose to sell Pepsi and not Coke, that's product discrimation and perfectly acceptable. If I'm willing to sell to one but not all, that's people discrimination and perfectly unacceptable.

The issue is when people refuse to sell what one group wants. Technically, that's still just product discrimination.

 

[RavenSky]

What thread are you posting in? We are discussing non-discrimination in public accomodation. If you want to talk about "college admissions" again, go start a different thread.

What I said in this thread and the topic of this thread is 100% accurate.

The point is you say there's no harm done. Just because it might not be so obvious in some cases doesn't mean there isn't a problem.

What I said... quite specifically... is

It's not "positive discrimination" in the sense of giving a leg up in any way.

"Positive discrimination" is "the act of giving advantage to those groups in society that are often treated unfairly". The college admissions you attempted to derail us with would be an example of "positive discrimination"

Protected classes - especially combined with "public accommodation laws" - the topic of THIS thread - is not giving an advantage to any group. It is telling shop owners like baker Phillips that they cannot discriminate (positively or negatively) against anyone when they open a business to the public.

No one gains an advantage, and (if the laws are followed) no one is disadvantaged. Equal playing field.

If you have an relevant counterpoint to present, do so. Otherwise, your vague, off-topic blah blah contributes nothing to the discussion.